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Affirmative Action in Higher Ed Admissions Still Holds for Now, But Don't Get Too Excited . . . . (Fisher v. University of Texas at Austin)

I have to admit it -- I've been more interested in the U.S. Supreme Court's upcoming decisions on same-sex marriage and DOMA than I have been in the affirmative action in higher education case decided today, Fisher v. University of Texas at Austin.  When it comes to affirmative action in higher education, I guess I'm just battle weary.  I fully expect that, like the T-Rex testing the electric fence in "Jurassic Park," the opponents of affirmative action will, at some point, happen upon a persuasive theory and a receptive Supreme Court majority and do away with affirmative action.  I'm way past holding my breath each time an affirmative action in higher education case reaches the Supreme Court.

As you can imagine, I was pleasantly surprised that the Supreme Court didn't strike down affirmative action in higher education in its entirety.  This case came to the Supreme Court as a result of summary judgment solely on the issue whether the consideration of race in admissions violated the Equal Protection Clause.  The Court tacitly upheld the proposition of diversity as a compelling state interest in higher education as part of a university's education mission, which was posited by the late Justice Powell in Bakke v. University of California.  The inroad, if any, made by plaintiff Abigail Fisher was that the Supreme Court held that the courts below failed to subject the University of Texas' consideration of race to strict scrutiny to determine whether it was narrowly tailored enough to achieve the diversity objective, i.e., whether any other approaches that don't involve the consideration of race could also achieve the diversity the University of Texas was seeking.  The case was remanded to the lower court for that more searching inquiry into the University of Texas' admissions program.

Proponents of affirmative action believe they've dodged a bullet.

I say don't get too excited.

Writing for the majority, Justice (and Sacramento homie) Anthony Kennedy pointed out one very important thing:  The parties did not ask the Court to consider whether diversity in higher education is still a compelling state interest that would survive the strict scrutiny analysis used when the government bases a decision in whole or in part on race.  Justice Kennedy noted that the District Court and the Court of Appeals were correct in finding that Grutter v. Bollinger called for courts' "deference" to a university's judgment that diversity is essential to its educational mission.

Them Justice Kennedy pointed out the way for the next challenge: "But the parties here do not ask the Court to revisit that aspect of Grutter's holding."

And that is precisely why the proponents of affirmative action should not get too excited. 

The next challenge to affirmative action cannot succeed, IMHO, without taking down diversity as a compelling state interest in higher education.  Justice Kennedy has pointed out the theory - revisiting "that aspect of Grutter's holding" that a university's judgment that diversity is essential to its educational mission is due deference by the courts.  The only remaining hurdles are a receptive Supreme Court majority and some disgruntled applicant who thinks that some minority applicant "took" an admissions spot he thinks he should have had. 

Maybe I'm just too battle weary and cynical when it comes to affirmative action in higher education.  I can't help but think that the end of affirmative action in higher education will happen in my lifetime and we might as well get prepared for it.

I hope I'm wrong.



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